Growing Desperate

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

On some public officials, The Honorable isn’t just a title but a description, and this John Roberts is starting to look like a combination of Mr. Clean and Judge Parker.


Day after day during the August congressional recess, the president’s nominee for next associate justice of the U.S. Supreme Court has been the target of one jab after another. And not a one has landed. Or come close to landing.


Some have boomeranged, like that awful anti-Roberts commercial from NARAL Pro-Choice America. It tried to identify the judge with the bombing of an abortion clinic, and it succeeded only in ousting NARAL’s communications director; he resigned amid the ensuing backlash.


And so it has gone. One criticism of the judge after another has been floated, and one criticism after another has sunk. But not before this past week has it been so clear just how weak the arguments against his confirmation have become.


This was the week Chuck Schumer, senior senator and constant nudnik from New York, joined Russ Feingold, his counterpart in Wisconsin, to question Judge Roberts’ ethics. Why? Because the judge didn’t recuse himself from a case involving the federal government after he’d been interviewed for a possible promotion.


The senators seem to think, or may just want others to think, that John Roberts’ not stepping aside under those circumstances was some kind of conflict of interest. (The unanimous appellate decision in which Judge Roberts joined was the one upholding the legality of military tribunals for suspected terrorists.)


But consider: John Roberts was first interviewed for the nomination to the Supreme Court in April of 2005, days before he started hearing the arguments in Hamdan v. Rumsfeld. At the time Judge Roberts could not have known whether he would be the administration’s pick for the court.


And neither could the various other judges who were being interviewed for the appointment at the same time. Should they, too, have separated themselves from any case involving the government? Other than shutting down a good part of the federal judiciary, what would that have accomplished?


Think of the precedent that would be set if, whenever a judge is interviewed for a higher post, he – or she – would have to step aside. If the White House wanted to prevent a particular judge from ruling on a case important to it, it would only have to interview him – or her – for a government job. (No need actually to appoint said judge to anything.)


Such a strategy would surely be among the first to occur to some sharp lawyer in government, and Washington has got to be full of ’em. Should a judge be required to recuse himself from important cases because he might be nominated for another judgeship? That sounds like a good idea only if you don’t think through all the ramifications.


Ah, but Senators Schumer and Feingold, the clearest thinkers since Abbott and Costello, point out that Judge Roberts did recuse himself from a case involving the American Bar Association when it was considering how to rate him as a nominee.


Well, sure. That was after he was formally nominated for the court and while his qualifications were being weighed by the ABA. (It found him well qualified.) That’s a whole different kettle of ethics.


When John Roberts was first interviewed by the administration in April, three months before it chose him as its nominee, Sandra Day O’Connor hadn’t even resigned yet, and it was still widely assumed that the next opening on the Supreme Court would be created when its ailing chief justice, William H. Rehnquist, would step down. Remember?


Well, the chief justice is still chief justice and Senators Schumer and Feingold are still raising cockamamie objections to the president’s nominee. It isn’t John Roberts who is playing the political games here.


At this still early stage in the process, it is these strained arguments against John Roberts’ confirmation, with their unmistakable tinge of desperation, that offer the clearest evidence yet that John Roberts is indeed well qualified for the court. Even if the American Bar Association, no stranger to political games, says so.


Whatever the outcome of these confirmation hearings, there’s one law that won’t be affected by whoever is the next associate justice of the United States Supreme Court, and that’s the law of unintended consequences. It’s still very much in effect: Two senators question a judge’s ethics and succeed only in raising questions about their own judgment.


The New York Sun

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